Butler (a pseudonym) v The Queen - [2021] VSCA 129

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0107

LIAM BUTLER (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the appellant’s name.

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2021
DATE OF JUDGMENT:	13 May 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 129
JUDGMENT APPEALED FROM:	[2019] VCC 1585 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of a child under 16 – Manifest excess – Principle of totality – Serious offender provisions – Appellant served sentence for related offending in New South Wales before falling to be sentenced in Victoria – Sentence of four years’ imprisonment with non-parole period of two years and eight months manifestly excessive when considered with sentence already served for related offending – Insufficient weight given to rehabilitation while appellant at large between sentences – Resentenced to two years and nine months’ imprisonment with non-parole period of one year and nine months – Mill v The Queen (1988) 166 CLR 59; Atem v The Queen [2020] VSCA 35 applied; Crimes Act 1958 s 49B; Sentencing Act 1991 pt 2A – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C K Wareham	James Dowsley & Associates
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with the orders proposed by T Forrest JA and his reasons for them.

T FORREST JA:

Over the course of about a month in late 2008 into 2009 the appellant sexually abused Daniel Sinclair,[2] a then 14-year-old boy. Most of the abuse occurred in Wollongong, New South Wales (the ‘Wollongong offending’), although the last, most serious episode occurred in Portland, Victoria (the ‘Portland offending’).
[2]A pseudonym.

In April 2016 the appellant pleaded guilty in Wollongong Local Court to four charges of aggravated indecent assault.[3] He was sentenced to two years’ imprisonment with a minimum term to be served before parole eligibility of 18 months. He was released on or about 30 September 2017.
[3]Contrary to Crimes Act 1900 (NSW) s 61M(2), since repealed.

On 18 January 2016 a charge was filed for the Portland offence of sexual penetration of a child under 16.[4] On 2 August 2018 the appellant indicated he would plead guilty to this charge. This was on the first day of what, up until then, had been listed as a contested committal.
[4]Contrary to Crimes Act 1958 s 49B.

On 21 August 2019 the appellant pleaded guilty in the County Court to sexual penetration of a child under 16, and on 1 October 2019 he was sentenced by Judge Gucciardo to four years’ imprisonment, with a non-parole period of two years and eight months.

On 11 November 2020 Priest JA granted an extension of time within which to file an application for leave to appeal, as well…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Butler (a pseudonym) v The Queen

Details

AGLC: Butler (a pseudonym) v The Queen [2021] VSCA 129
Case: [2021] VSCA 129
Decision Date: 13 May 2021

CaseChat Overview and Summary

The appellant, known by the pseudonym Butler, appealed against his sentence for the sexual penetration of a child under 16. The case was heard in the Court of Appeal of Victoria. The appellant had already served a sentence in New South Wales for related offences before being sentenced in Victoria, where he was given a four-year imprisonment term with a non-parole period of two years and eight months. The appellant argued that the sentence was manifestly excessive when considered alongside the sentence already served in New South Wales, and that insufficient weight was given to his rehabilitation while at large between sentences.

The central legal issue was whether the original sentence was manifestly excessive, considering the principle of totality and the appellant’s rehabilitation efforts. The court had to determine whether the sentencing judge had appropriately balanced the severity of the crime with the appellant’s rehabilitation and the time already served. The appellant also argued that the serious offender provisions were not correctly applied. The court was required to review the sentence in light of these arguments and decide if the sentence was proportionate and just.

The Court of Appeal found that the original sentence was indeed manifestly excessive when considering the principle of totality and the time the appellant had already served in New South Wales. The court noted that the sentencing judge did not adequately account for the rehabilitation efforts of the appellant while he was at large. By applying the principle of totality and recognising the appellant’s rehabilitation, the Court of Appeal resentenced the appellant to two years and nine months’ imprisonment with a non-parole period of one year and nine months. This decision was influenced by previous cases such as Mill v The Queen and Atem v The Queen, as well as relevant provisions from the Crimes Act 1958 and the Sentencing Act 1991.

The appeal was allowed, and the original sentence was set aside. The appellant was resentenced to two years and nine months’ imprisonment with a non-parole period of one year and nine months, reflecting the principle of totality and the appellant’s efforts at rehabilitation.

Orders